Legislature(1993 - 1994)
03/02/1994 03:50 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CHAIRMAN MILLER called the Resources Committee meeting to order at 3:50 p.m. and announced SB 316 (FISHING VIOLATIONS:FINES/BURDEN OF F PROOF) to be up for consideration. SENATOR HALFORD, sponsor, said it changes penalties for commercial fishing violations and misdemeanors. It doubles the fine for violations, changes the provisions to make them stronger on action on misdemeanors. In general, he explained, misdemeanors require intent and violations don't. It is important to note that the number of enforcement actions is going up, but the amount in fines is going down. He said he lays a lot of the blame at the Department of Law's prosecution efforts, citing where in many cases, especially in Bristol Bay, a prosecutor lowered the recommended penalty (which the defendant agreed to) to the court, because he thought the plea agreements were too harsh. SENATOR ADAMS moved to adopt the CS to SB 316. There were no objections and it was so ordered. SENATOR ADAMS said he had a problem with the percentage of fines, because he comes from a fishing district that does not make huge profits as in Bristol Bay. He hoped they could look at an annualized percentage of profit versus a fine. His other concern was in Section 2, where it says "a person who without any culpable mental state violates Alaska Statute 16.05.440 - 16.05.690." He said that covered a lot of sections. SENATOR ADAMS also had problems with the $6,000 penalty for forgetting to renew a license. SENATOR HALFORD responded that this legislation is increasing the maximum fine which hasn't been the problem. It isn't his intention to penalize someone who hasn't managed to handle the paper work. The court of appeals reserves the maximum fine for the worst kinds of offenders. SENATOR ADAMS said he agreed with those points, but he has problems with Section 2 and designating Alaska Statutes. SENATOR HALFORD explained that is the existing statutory reference dealing with the violation provision. He doesn't disagree with Senator Adams' concern, he said. SENATOR LEMAN asked for clarification of felonies, misdemeanors, and violations. SENATOR HALFORD said the primary difference is that a misdemeanor requires a culpable mental state. SENATOR ZHAROFF said Section 4 changes the defendant's responsibilities from showing a preponderance of the evidence to clear and convincing which would be difficult. SENATOR HALFORD explained that it is not a criminal standard, but it is a higher standard than currently used. Number 199 C. E. SWACKHAMMER, Deputy Commissioner, Department of Public Safety, and Colonel Bill Valentine, Fish and Wildlife Protection, joined the Committee. SENATOR ADAMS asked him to comment on his concern with Section 2. MR. SWACKHAMMER agreed that the fines were increasing by twice as much. He explained that the penalty for merely not renewing a license would be less than $1000. He said if a person is commercially fishing without an entry permit it's charged as a misdemeanor with a maximum fine of $15,000. There was a brief discussion of fines. MR. SWACKHAMMER said that every fishery is different. Different standards are set. Courts have been fairly consistent and so has the Department as far as exercising enforcement authority. He said what they do now is not working. SENATOR ADAMS noted there was no fiscal note. MR. SWACKHAMMER said they would anticipate more misdemeanor trials in the Dillingham/Naknek courts. He said this would mean a fiscal note of $10,000 - $20,000 which he would prepare. Number 374 DAVID INGRAM, Hearing Officer, Commercial Fisheries Entry Commission, testified in favor of SB 316 saying it would give the Department of Public Safety the tools they need for enforcement around the state. He said these penalties are really aimed at the flagrant violator. SENATOR DONLEY said a large fine cannot be given for a minor infraction. Number 425 SENATOR ZHAROFF asked if a permit holder could lose his fishing privileges if he had three misdemeanors in different fisheries. MR. INGRAM replied yes, the judge has the discretion to suspend one or more of the privileges. Number 455 SENATOR FRANK moved to pass CSSB 316 from Committee with individual recommendations. SENATOR ZHAROFF objected saying he was concerned with the amendments suggested by the Limited Entry Commission. He also thought the one year mandatory suspension provision was very sudden compared to the three years it is now. SENATOR LEMAN moved reducing the penalty to two misdemeanors within ten years before mandatory suspension. MR. INGRAM said that the Department of Public Safety would like to see it remain one year of discretionary call by the judge and on the second conviction move to mandatory suspension. He said the problem is that they are not getting any misdemeanor convictions. They are all being given violations, so no one is collecting misdemeanor number one. They want to send the message to the fleet that the legislature is concerned. Sympathetic cases can always be dealt with on a violation level, he added. There were no more objections and CSSB 316 passed from Committee with individual recommendations.